Often we receive enquiries in relation to waste in family law matters and how it can be minimised. At Watson & Watson we have senior experienced Solicitors who can advise you and consider the cost benefit analysis. Generally if the asset pool is known (as is in most cases) it is relatively easy to provide a range of outcomes that are likely at a hearing.

On many occasions couples have run a successful business together over a period of many years and thereafter their personal relationship breaks down. It is a difficult time especially when both parties have invested many hours of work in the business to achieve the success that it has.

Often when there is a breakdown of a marriage or a relationship and there are children to that relationship the parents of the children sometimes do not encourage or even allow the children of the relationship to see their grandparents and more particularly, the parents of the now estranged spouse or partner.

The Bankruptcy Act 1966 provides a regime for management of the affairs of someone who becomes a Bankrupt. A person can become a Bankrupt when they cannot pay their debts as and when they fall due. This can be as a result of the presentation of a Creditor’s Petition by one of the entities to whom the debtor owes money or; a Debtor’s Petition filed by the person who is unable to pay his or her debt when it falls due. Both processes result in a person becoming a Bankrupt.

Since March 2009 property division between parties to a de facto relationship has been dealt with by the Family Court of Australia and the Federal Circuit Court of Australia. This also applies to same sex relationships.

In Courts of First Instance such as the Family Court of Australia or the Federal Circuit Court your case must be prepared to ensure that evidence is available for the Court to have an opportunity to consider the evidence you wish to rely upon so as to come to a decision.

Often at Watson & Watson we receive enquiries as to whether proceedings should be commenced or transferred to a Court within Australia to deal with Family Court issues. We have had recent cases with alternative jurisdictions in America, New Zealand, India, Spain, France, Qatar and England.

The identification and the valuation of assets (other than minor assets for which an assessment [and hopefully agreement] can be made) and liabilities is a fundamental and necessary step that needs to be achieved in order to put a party (either in a de facto relationship or marriage) to a family law property matter in a position to ascertain the value of the asset pool.

In a recent case of Waterman in 2017 the Full Court of the Family Court considered this aspect amongst others issues that arose. We have elsewhere dealt with different matters referred to in the Waterman case in particular the effect of the failure of one party to provide full financial disclosure and the disastrous consequences of such failure.

A recent case of Waterman decided by the Full Court of the Family Court in 2017 is a very good example of how the parties to the marriage can end up with very little and the lawyers end up with the greater “slice of the cake”.

In the case of Eldaleh (2016) a Judge of the Family Court of Australia (Family Court) heard an application filed by Mr Eldaleh who was seeking a declaration that his marriage to Ms Eldaleh which took place in the Middle East in 2016, was a valid marriage pursuant to Section 88D of the Marriage Act 1961 (Cth) (the Marriage Act).

This is a question that we are often asked by clients intending to enter into or are at the tail end of a de facto relationship and are seeking clarification as to exactly what defines a de facto relationship so that they may understand the legal ramifications of entering into or ending a de facto in particular in relation to property/financial matters.

Often we receive enquiries at Watson & Watson as to whether a relationship amounts to a de facto relationship. The question as to whether a relationship is a de facto relationship under the Family Law Act is one that is determined based on the factual matters and having regard to the factual matters the law is applied to determine whether there is a de facto relation subject to the Family Law Act.

In Family Court cases concerning the children and the time that they spend with each of their parents the Court will consider what is in the best interests of the children and the suitability of each of the parents in relation to parenting.

The High Court in the recent case of Bondelmonte v Bondelmonte (decided in 2017) looked at the question as to the conflicting issues as to the child’s wishes and what is in the best interest of the child.

The valuation of assets and liabilities is a fundamental and necessary step that needs to be achieved in order to put a party to a family law property matter in a position to ascertain the value of the asset pool.

In a recent decision by the Full Court of the Family Court (the Full Court) in Bangi and Belov (2017), a father’s appeal against a decision made by the trial Judge was allowed in circumstances where the Full Court decided that the trial Judge had given insufficient consideration to the mother’s conduct toward the child, namely, exposing the child to family violence.

The Full Family Court has considered a recent decision of the Family Court as to the Application of Section 79 of the Family Law Act and whether the Trial Judge failed to consider relevant Section 75(2) factors resulting in an injustice to the wife.

When parents are separated issues can arise in relation to overseas travel. A child under the age of 18 must have a passport to travel overseas. An Australian Passport can only be issued to a child (a person under the age of 18 years) if both parents of that child (or other persons with parental responsibility) give their consent to the issue of Passport by signing the Passport Application.

In situations where parents have separated sometimes there are situations when at the end of the time children are spending with the parent (with whom they do not live) that parent does not return the children. There are also situations where a parent can simply relocate or attempt to relocate to a different area or State with the children without telling the other parent. This can be called child abduction.

The Family Lawyers at Watson & Watson act for many clients and there are many enquiries as to the numerous aspects following separation. One of the aspects, sometimes the most important and sometimes not the most important, is that of property settlement and the adjustment of the property following separation of a husband and wife to a marriage or parties to a de facto relationship (including same sex relationships).

The Federal Court of Australia considered the basis of the calculation as to each parents’ percentage of care in an appeal from a determination of the Child Support Registrar. The percentage of care issue determines in part the child support payable. This particular case involved a dispute between a mother and father whose child attended Boarding School.

In cases where proceedings are commenced in the Family Court or Federal Circuit Court of Australia for property settlement, the Court has a process to assist the parties to reach an agreement and settle the case before final hearing before a Judge (with solicitors and barristers).

Parents commonly provide financial assistance to their children to enable them to purchase a property. Frequently those children are in a relationship, and the money becomes intermingled in that relationship. What happens when the relationship breaks down and a property settlement is inevitable?

The Family Law Act and the Courts have a system that requires separating couples to participate in pre-action procedures to attempt to resolve the dispute or narrow the issues of the dispute. These procedures need to be carried out prior to the parties commencing proceedings in the Family Court of the Federal Circuit Court of Australia.

Watson & Watson, Richard Watson and Dennis Grant regularly act for individuals who have significant assets and wealth. In a recent case Watson & Watson acted for the Husband in a dispute that arose following the breakdown of a marriage of nearly 30 years duration.

In a recent case in 2016 parties who had commenced living together in about 2002 and separated raised the issue as to whether an amount of $90,000.00 (which was a significant amount having regard to the other assets) should be added to the property pool.

Often the family lawyers at Watson & Watson act for clients who are faced with the question of how the Family Court will deal with waste or negative contributions in relation to the resolution of property settlement following separation of a husband and wife of a marriage or parties to a de facto relationship (including same sex relationships).

Watson & Watson often receive enquiries and provide advice in relation to whether proceedings should be conducted in Australia or in other countries throughout the world. There are advantages through some jurisdictions and disadvantages in other jurisdictions, depending upon what issues are in contention and what is the factual matrix of the relationship and financial matters.

If the parents of a child or children cannot agree to arrangements concerning the children, attending Mediation to work our contact arrangements for the children is the first step in attempting to establish fair contact arrangements for both parties. Mediation is meant to be a means for resolution but is sometimes viewed with trepidation by some parents.

Watson and Watson acted on behalf of a Mother, Natasha in relation to parenting proceedings before the Federal Court of Australia in 2012 in which there was a significant dispute between Natasha and Mark the Father of the Children. The Court made Orders generally in accordance with the Orders that were sought by Natasha.

Watson and Watson experienced Family Lawyers received instructions from Jenny who sought our advice as she wished to change the Parenting Orders that had been made by the Court following a fully contested Hearing in 2012. The Husband/Father opposed the changes which were sought by Jenny to the Parenting Orders.

A fundamental part of Family Law so far as property division is concerned is the provision by each party of the full and frank financial disclosure. In property proceedings, each party must provide to the other full and frank financial disclosure.

Following Richard Watson being instructed and re-focusing initially by Tina and thereafter as a consequence, refocusing by Lisa as to what was the desired outcome of each of the parties, when Richard Watson was initially instructed the parties had spent about $1,000,000.00 on legal costs and associated matters.

In a recent case in December 2015 the Full Court of the Family Court of Australia upheld an Appeal against the decision of the initial Judge in the Family Court of Australia. The initial Judge set aside a Binding Financial Agreement which had been signed by the parties.

Watson and Watson received an enquiry from Jenny following separation from her Husband. The issues involved related to time that the Husband/Father spent with the children and secondly property settlement and spousal maintenance.

Watson and Watson received an enquiry from Robert in late 2015 in relation to the division of property following his separation from his wife in September 2015. The Husband and Wife each of whom were employed professionally were married for approximately 5 years before separation.

Watson & Watson in late December 2015/January 2016 received instructions in relation to recovery action for children taken by one parent without the consent of the other parent or Court Order. Some involved international removal and the Hague Convention. Others were more localised. At least two involved removal of the child without any prior warning.

In Family Law matters involving property allocation between parties to a marriage or parties to a de facto relationship following dissolution the parties often they come to "agreements" as to the allocation of the assets and other related matters. It is a great pitfall for the agreement not to be properly documented.

On many occasions enquiries are made and we act on behalf of parents of children who are involved in Family Court proceedings. It is a very difficult time for the whole family and a very difficult time for the children. The children at this very difficult time most often do not wish to disappoint either parent and will often say in discussions with a particular parent what they think that parent wishes to hear. This causes great stress for the children.

The Family Court or the Federal Circuit Court where there is a breakup of a marriage or de facto relationship which deals with issues relating to property considers many issues we have indicated in other articles.

The experienced solicitors at Watson & Watson have been involved in hundreds of cases requiring proof of matters of opinion. Opinion evidence is separate and distinct from evidence as to facts. Evidence of facts usually relate to evidence of what one can see, hear and read. Opinion evidence is a professional opinion of interpretation of the factual matrix.

On many occasions Watson & Watson who are experienced Family Law Lawyers are approached by parties involved in distribution of property following breakdown of their marriage or de facto relationships. Questions arise as to how the Family Court will deal with property held by a Trust. The Court deals with the issue depending on the exact nature and circumstances of the Trust.

Watson & Watson receive enquires and instructions in relation to matters where parents of one or other of the parties have provided money to assist the married or de facto couple. This often occurs when the couple seeks to purchase a matrimonial home or funds to commence a business. In the event that the relationship breaks down there is most often a debate as to how these funds are to be considered by the Family Court. There is a fundamental difference.

Joanne approached Richard Watson an experienced family lawyer of Watson & Watson after separating from Paul after 20 years of marriage. Joanne and Paul had numerous discussions including mediation as to the possible division of the assets of the marriage before approaching Watson & Watson. However, the matter could not be resolved.

Watson & Watson were consulted by Mary who needed advice in relation to how to achieve a division of property following a breakdown of the marriage to James. James and Mary are Australians but met in and married in New Zealand in 2000.

Watson & Watson received instructions from Ralph after his marriage had broken down. The husband and wife had been married for many years and had 3 children, 2 of whom had left school and were adults. The assets consisted of the family home, a business owned by the husband, wife and extended family and numerous property holdings including the land from which the business operated and various home units mainly relatively low value home units throughout Sydney.

Watson & Watson act for Sally. Robert and Sally had been married for 10 years and have two children aged 6 and 9. They both live in the house owned by them in joint names. The house is a large house and there is a mortgage to the bank.

Over the years Watson & Watson have seen many Orders and Terms of Settlement, particularly where the Terms of Settlement and/or Orders are made at or during the hearing, which are unclear. One should never assume that the difficulties that the parties are faced with up to that time have suddenly been overcome by an agreement to settle.

The Family Law Act 1975 empowers the Family Court of Australia or the Federal Circuit Court of Australia to make parenting Orders. Parenting Orders are Orders made in relation to a child or children (or variations, suspensions, revivals of earlier Court Orders) that deal with one or more of the following.

The Family Court and the Federal Circuit Court are the Courts that hear and determine applications for property division. These Courts can also approve Orders agreed on by parties. These are known as Consent Orders. Time limits apply to applications for property division and maintenance Orders.

Not every person has the same capacity to fund legal proceedings for property division in cases which are usually commenced in the Family Court or the Federal Circuit Court of Australia. This can cause problems when one party to a marriage or a relationship is in a weaker financial position than the other party. This may arise by reason of one party having more assets or control of joint assets or by reason of their superior earning capacity.

Joanne and her partner James separated after being together for over 5 years. The relationship had for a long time been “on gain and off again”. In times of difficulties Joanne had stopped living with James and return to live with her mother. Joanne then returned to live with James. Ultimately Joanne decided that the relationship was over and found her own accommodation. Joanne raised the issue of a property division with James. James told her that she was not entitled to anything as they had never been in a de facto relationship. James said that they were never more than boyfriend and girlfriend.

David and Vanessa were in a de facto relationship for 12 years and then separated. They had a boy and a girl aged 11 and 9. David moved to Germany and Vanessa remained living in Sydney with the two children. David generally travelled to Australia twice a year and spent time with the children in Sydney and on holidays in Australia.

Watson and Watson were consulted by Jennifer who had separated from her husband Paul 11 months earlier. Jennifer and Paul lived close to each other in separate houses. They had not been able to establish a pattern of living arrangements for the two children aged 9 and 11.The children attended the same school and both had weekend sporting commitments. Each week, and especially on weekends, disputes arose as to where the children would be living and what activities would take place.

When a marriage breaks down, there are extensive rules governing how the assets of the marriage are to be divided between the parties to the marriage. The assets to be taken into consideration in the division of the assets of the parties includes a business in which one or other or both have an interest.

The importance of properly considering offers made to you and properly considering offers to be made by you to the other party to resolve either particular issues or the whole of proceedings between the parties.

In cases decided under the Family Law Act the general principal is that the Court does not make an order that one party to the proceedings will pay the other party’s costs of the proceedings. Usually each party is to pay their own legal costs. However, there are exceptions to this general principal. Section 117 of the Family Law Act provides the circumstances in which the Court may order one party to pay the other party’s costs.

Often a parent, grandparent or person who is concerned as to the welfare of the children who are caught up in the breakdown of the marriage of their parents approach Richard Watson or Dennis Grant for advice as to how best to protect the children. One of the main concerns is how the child or children involved will spend time with each of the parents and other important members of the extended family.

Jennifer who had separated from her husband Paul 11 months earlier sought advice firstly from Richard Watson and from Dennis Grant as Jennifer and Paul had not been able to put in place an appropriate arrangement in relation to the children.

Following separation the children of the relationship need financial provision. Generally the parent with whom the child or children live most of the time receives child support. The parent who has lesser time usually pays the child support. Child support is separate from spousal maintenance payable by the husband to the wife or the wife to the husband.

Following separation the children of the relationship need financial provision. Generally the parent with whom the child or children live most of the time receives child support. The parent who has lesser time usually pays the child support. Child support is separate from spousal maintenance payable by the husband to the wife or the wife to the husband.

William approached Watson & Watson and discussed his concerns with Dennis Grant. William’s wife Clare decided that she wished to leave Sydney where they lived as a family before separation to move back to Adelaide with her parents and other family members lived.

Brian approached Watson & Watson following separation from his wife, Cheryl, the mother of his two boys. Brian wanted to have the boys on every second weekend and during school holidays and on special occasions. Initially following the separation the boys spent time with Brian generally on this basis, however, on an ad hock basis.

George had been married to Nadia for approximately 16 years. Nadia’s parents had provided significant financial support during their marriage. The support was provided significantly through Trusts that had been set up by Nadia’s parents for them and their children. The Trusts were discretionary and were completely controlled by Nadia’s parents. Nadia had no entitlement to capital and was at best, a discretionary beneficiary.

Mark approached Watson & Watson following the breakdown of his marriage with Gail. Mark and Gail had agreed to allocation and distribution of the matrimonial property. Mark was concerned that once the settlement had been effected that he protect himself from further claims.

Karen approached Watson & Watson for advice a long time after a property settlement with Court Consent Orders with her former husband, Peter. Karen was very concerned that property which she was aware of, had not been included in any financial disclosure by Peter at the time of settlement. This property was “family owned”, Peter denied that it was his property.

Following the separation of Sally and John, John wanted to ensure that Sally would not take the two children of the marriage back to England. John wanted to stay in Australia and to have a good relationship and significant time with the children.

Craig approached Watson & Watson in relation to the breakdown of his same sex de facto relationship with Donald following their separation in 2013. Donald and Craig had been in the de facto relationship since 2002 and lived in Sydney.

Jenny approached Watson & Watson for advice on spousal maintenance following separation from Ross whom she had been married to for 20 years. Watson & Watson were able to negotiate an interim spousal regime so that Jenny had sufficient funds to live on pending resolution of the property issues. Jenny remained in the former matrimonial home with the 3 children.

Mary sought advice from Watson & Watson as to whether she could change her son Stephen’s surname as she had remarried and had children with her second husband. The Federal Circuit Court of Australia (Family Court) can order that a child’s name can be changed in certain circumstances.

Paul and Mary want to get married. Paul is 52 and Mary is 46. Both have been married before and have had property settlements with their former partners, both own their own house and have other assets including savings and shares. Paul has an investment property. Both have children from their first marriages.

More and more third parties are finding themselves involved not just as witnesses but as parties to litigation in the Family and Federal Magistrates Courts. This paper addresses some of the practical issues which may arise in such cases.